The prosecution and investigating team has no knowledge of any activities of the State’s intelligence services. It is denied that the investigation was aimed at finding some aspect that could be used against Zuma. No member of the intelligence services played any role in the investigation and prosecution. I notice that Zuma provides no basis for his assertion to the contrary.
Ad paragraph 25
This paragraph is not disputed, save to reiterate that Zuma was one of a number of persons who and entities which became the subjects of investigation. It is denied that Zuma played no part in the arms deal process, or that it was a known fact that he played no such part.
Ad paragraph 26: general
It is a futile exercise to choose selected snippets of evidence, press reports and general references to, for instance, the JIT report, and then to urge that a conclusion that Zuma is innocent of any wrongdoing, is warranted.
An appraisal of all the evidence and its ultimate relevance to the guilt or innocence of the accused is properly a matter for the trial court, as it was in the Shaik trial.
The facts on which the State case is based are complex. They are infinitely more extensive and nuanced than any superficial reference to one or other fact here or there might indicate. The most superficial reading of the judgment in the Shaik matter will confirm this.
In the light of the above, it is denied that the references to these selected aspects of some evidence support Zuma’s theory that he is being prosecuted with an ulterior motive. These references are consequently irrelevant to the present application.
Ad paragraph 26(a)
It is disputed that this extract from Woods’ evidence correctly reflects the import of his evidence in totality. The court in the Shaik matter duly considered the impact on the evidence of this snippet of evidence, which was in any event hearsay.
Ad paragraph 26(b)
This paragraph is disputed. I have related the conclusions of the JIT report above, which specifically indicated that criminal investigations were continuing. The findings of the JIT report are not directly relevant to the present charges. Griesel’s evidence was presented by the State in the Shaik trial. The court duly considered Griesel’s evidence and relied on it as part of the State’s case incriminating Shaik.
Ad paragraph 27
This paragraph is disputed.
It is not part of the State’s case in the present matter that there was any demonstrable corruption in the awarding of the prime contracts.
Zuma wrongly describes the charge relating to corruption concerning the arms deal investigation as ‘corruption in the form of an undertaking to cover up corrupt awards of the arms deal contracts’. The most superficial reading of the provisional indictment reveals that the relevant allegation is that Zuma agreed to provide protection to Thomson-CSF against the investigation concerning the corvettes programme.
Ad paragraph 28
These allegations are irrelevant and, in any event, simplistic. It is futile to challenge the prosecution to produce witnesses to testify to facts that are not alleged in the indictment.
Ad paragraph 29
These allegations are irrelevant. It is not alleged in the provisional indictment or summary of facts that there was discernible corruption in the award of the prime contracts in the arms deal.
Ad paragraphs 30 to 31
The contents of these paragraphs are noted. This debate is irrelevant to the present application.
Ad paragraphs 32 to 34
Ngcuka has dealt with the issues in this paragraph in his affidavit.
Ad paragraph 35
I refer to paragraph 58 above.
Ad paragraph 36
The contents of this paragraph are not disputed, save to mention again that Zuma was merely one of many persons and entities investigated in this investigation.
Ad paragraphs 37 to 40
The contents of these paragraphs are dealt with in the affidavits of Maduna and Ngcuka.
Ad paragraphs 41 to 42
These paragraphs are irrelevant to the present application. The fact is that litigation concerning the encrypted fax took its course. Zuma’s application was indeed ruled not urgent. As detailed above, the State had good reason to withhold the original copy of the encrypted fax at that stage of the investigation and prosecution. Also as detailed above, Zuma was provided with a typewritten copy of the fax. It is denied that there was any ulterior motive for withholding a copy of the original fax.
Ad paragraph 43
This paragraph is admitted, save to point out that the judgment on the merits was delivered over three days.
Ad paragraph 44
This paragraph is admitted.
Ad paragraph 45
The prosecution has no further knowledge of the President’s actions and reasons, other than what has appeared in the press. This paragraph can neither be admitted nor denied.
Ad paragraph 46
The contents of this paragraph are denied.
It is incorrect that Zuma was dismissed as a result of the charges brought against him. That much is clear from the date sequence. The President relieved him of his duties on 14 June 2005. The decision to prosecute Zuma was made and announced on 20 June 2005. The President had no prior knowledge of the NDPP’s decision. This is confirmed in Pikoli’s affidavit.
The reasons for deciding to prosecute Zuma have been dealt with. The test underlying such decision is not ‘guilt beyond reasonable doubt’ as alleged. It is ‘reasonable prospects of success’, as is apparent from Ngcuka’s media of 23 August 2003 (annexure ‘LM4’).
The ‘old’ evidence was sufficient to constitute a prima facie case against Zuma, although not sufficient for there to be a reasonable prospect of a successful prosecution. This evidence was indeed supplemented by the developments and evidence in the Shaik trial (this has been explained above). There was thus cause for the National Director to consider that the evidence, after the Shaik trial, was sufficient for there then to be a reasonable prospect of a successful prosecution against Zuma.
The decision to arrest or prosecute must inevitably adversely affect any accused person.
Zuma was invited to respond to a range of questions relating to the investigation in 2003, as mentioned above. His answers did not assist the investigation. It would have been futile to elicit a further response from him after the Shaik trial (as evidenced now by his reiteration in his affidavit of many of the answers given in 2003).
It is denied that the decision not to prosecute Zuma in 2003 could have engendered any legitimate expectation that he would never be prosecuted again – Ngcuka said that he might well be.
Ad paragraph 47
The contents of this paragraph are denied. This matter is dealt with in Pikoli’s affidavit, wherein he specifically denies that the President had any prior knowledge of his decision to prosecute Zuma, which in any event was only made and published after the President had relieved Zuma of his duties.
It is noted that Zuma’s allegations are based on supposition and a press report.
Ad paragraph 48
It is denied that the charges lost Zuma the Deputy Presidency. He was dismissed before he was charged and before the President knew that the NPA had decided to charge him.
The decision to arrest or prosecute must inevitably adversely affect any accused person.
Ad paragraph 49
It is correct that Pikoli discussed the impending decision to prosecute Zuma with him. It is also correct that the NPA fully expects that the trial should be commenced and concluded as speedily as possible. This is the case with all trials. Zuma is entitled to expectations no more than any other accused person who is facing serious and complex charges. It is denied that he was promised anything further.
Ad paragraphs 50 to 55
The issue of the search and seizure warrants is a matter for the trial court to determine during the trial, in the light of all the evidence.
Nevertheless, it is appropriate to provide the following general responses to Zuma’ allegations contained in these paragraphs.
The search and seizure warrants and operations were conducted in accordance with the applicable legislation and were duly authorized by Ngoepe, JP. The merits of these are the subject of separate litigation. The effect of such on the trial will be a matter for the trial court to determine.
The searches and seizures were conducted in the normal course. The terms of the applications for the warrants indicated in detail why they were considered necessary. In summary, the investigation was considered to be incomplete without them and there was a reasonable expectation that relevant information would be found on the premises, as indeed it was.
It is denied that there was any motive other than this.
The persons who conducted the searches did so in accordance with their statutory powers, and as authorized by the terms of the warrants.
It is denied that the State has intended to find or rely on any privileged information. The State has not acquired knowledge of the content of any privileged information.
Ad paragraph 56
The tax and fraud investigation was authorised in the normal course on the reasonable basis that such investigations had become necessary.
The allegations in this paragraph to the contrary are disputed.
It is denied that there was any motive other than investigation in the normal course.
Ad paragraph 58
It was at all times made apparent to all parties that the provisional indictment was based on the evidence as it stood in the light of the investigation for the purposes of the Shaik trial, and also taking into account some of the developments during the Shaik trial. It was expressly provisional because the investigation relating to Zuma was still continuing and it had not been completed. In addition, the new forensic report necessary for the investigation relating to Zuma had also not been completed.
The provisional indictment specifically excluded the further investigation that was being conducted after the Shaik trial and the findings of the new forensic report, because neither of these were available.
It is thus a futile exercise to compare the Shaik and Zuma indictments with a view to drawing any meaningful conclusions about the nature of the further investigation.
Ad paragraph 59
This paragraph is disputed.
Ad paragraphs 60 to 65
Woods identified this letter during the investigation. It was addressed to him and he received the original. It was apparently signed by Zuma.
The State has at no stage had any admissible evidence regarding who may have had a hand in composing the letter, other than what appears from the letter itself. It stands on its own terms.
The basis of the State’s arguments concerning the letter, as reflected in the court’s findings, was that it may well be that Zuma did not compose the letter. It was sufficient that he signed it. This was sufficient for the purpose of the Shaik trial and sufficient for the purposes of the conviction. It would have made no difference to either who composed the letter.
Nothing turns on any difference in the wording concerning the letter in the Shaik or Zuma indictments.
It was open to Shaik (with or without Zuma’s assistance) to have called any evidence he wished concerning the letter. He did not do so. It is likewise open to Zuma to present whatever evidence he might wish about the letter and to urge whatever conclusions he seeks the court to make.
The reference to the letter in the provisional indictment is of a status and significance no different from any other allegation in the indictment.
It is denied that any part of the indictment is designed with any ulterior motive against Zuma. All the allegations are in accordance with the evidence.
The State has no knowledge of private discussions between the President and Zuma, nor is it able to rely on the accuracy of press reports as evidence.
It is denied that an adjournment will destroy Zuma’s right to a fair trial.
Zuma is entitled to the treatment that would be accorded to any accused who faces an application for an adjournment. The application turns on its own merits. Should it be justified, as the present application is, it is inevitable that this will encompass some personal prejudice to the accused. As against this, the adjournment sought will allow Zuma and his legal representatives adequate time to prepare for what is bound to be complex and taxing trial.
Ad paragraph 66(a)
The State seeks an adjournment until the first quarter of 2007, not for 2 years. The effect of an adjournment on the evidence would not render the quality of the evidence appreciably different from evidence that might have been delivered mere months previously.
Ad paragraph 66(b)
I reiterate that a political conspiracy against Zuma is denied. It is denied that an adjournment of the trial has anything to do with a political conspiracy.
Given Zuma’s attitude regarding the time that he will need to prepare for the trial, an adjournment at the request of the defence was inevitable.
The State and the Court cannot be held hostage to fortuituous future political events that might affect Zuma’s career. The prosecution and the judiciary are constitutionally bound to act without fear, favour or prejudice and accord all accused persons equal treatment.
Ad paragraph 66(c)
The State has no knowledge of Zuma’s negotiations regarding legal assistance. Given the time that the defence requires to prepare its defence, the delay occasioned by the adjournment was inevitable. The defence would in any event have been taken up in preparation.
Ad paragraph 67 to 76
These paragraphs are irrelevant for the purposes of the present application.
The present investigating and prosecuting team had no knowledge of or involvement in the rape trial and it is irrelevant for the purposes of the present trial. This team is unaware of any steps that the prosecution in that case may or may not have undertaken during the prosecution.
Ad paragraphs 75 to 76
I again deny that there is any ulterior motive in seeking the adjournment. It is necessitated in order to complete the further investigation. The State seeks to obtain the evidence of all relevant witnesses, whoever they may be. Any supposed strategy to use the adjournment to obtain the evidence of so-called defence witnesses is denied with contempt.
Ad paragraph 77
It has been detailed extensively why Zuma could not be charged earlier and why he was charged in June 2005. Given the circumstances, the situation could not have been different.
The State has done everything within its power to commence with the trial on the trial date. It has been prevented from doing so by circumstances beyond its control.
Ad paragraphs 77(a) to (g)
Subject to what follows, these paragraphs are not disputed. As regards Zuma’s discussion with Pikoli, I refer to Pikoli’s affidavit and to paragraph 200 above. I shall not traverse herein the contents of Zuma’s affidavit in the application for further particulars of Thomson Holdings and Thomson (Pty). That application was dismissed.
Ad paragraph 79
The contents of this paragraph are noted.
Ad paragraph 80(a)
The remedy to an infringement of speedy trial rights is more appropriately an order expediting the trial rather than one aborting it.
Ad paragraph 80(b)
This paragraph is denied.
Ad paragraph 81
This paragraph is disputed.
Zuma has never been ‘the target of the investigation’. Since the discovery of the circumstances surrounding the encrypted fax in mid 2001, the State has been obliged to investigate all the offences that might arise from this evidence. Zuma was obviously one of the parties implicated by this and other evidence.
Ad paragraph 82
This paragraph is disputed.
Zuma was not targeted from the outset of the investigation, or at any stage.
It is irrelevant whether any other parties have been prosecuted in connection with the arms deal. As it happens, the prosecution against Yengeni was also one connected to the arms deal.
The allegations concerning Zuma’s role in the alleged corruption are detailed in the provisional indictment. It is pointless for Zuma to attempt to answer in general the supposed mystery concerning what influence he exercised in the arms deal. The allegations are no less and no more than those detailed in the indictment and summary of facts, all of which are supported by the evidence.
Ad paragraph 83
The State’s averments regarding the Shaik trial are exactly correct. There was no need to mention that Zuma was not charged as this is obvious and it is mentioned elsewhere when pertinent. It is denied that it is significant that the State did not mention Zuma when mentioning that Shaik was charged.
The reasons for not initially prosecuting Zuma have been dealt with above.
Ad paragraph 84
Given Ngcuka’s view of the evidence, the NPA was duty bound not to prosecute Zuma, irrespective of the views of the investigators.
Ngcuka’s view was not that there was not sufficient evidence ‘beyond reasonable doubt’ to prosecute Zuma.
Ad paragraph 85
The relevance of this paragraph to the application is disputed.
It is denied that Ngcuka’s statement was a ‘character assassination’.
The phrase ‘beyond reasonable doubt’ is incorrect.
Ad paragraph 86
The NPA has consistently disputed the findings of the Public Protector.
Ad paragraph 87
The inference urged is disputed.
Ad paragraphs 88 and 89
The progress of the prosecution against Thomson (Pty) has been dealt with elsewhere. It is evident that there is no written agreement, in the sense of one signed by both parties. Ngcuka did however write to Naidu the letters of 19 April 2004 and 4 May 2004 (see paragraphs 62 to 64 above).
The full details of Thomson (Pty)’s breach of the agreement appear from what is stated above and in the affidavits of Maduna and Ngcuka.
Ad paragraph 90
Save that Thomson (Pty) has never had an indemnity, this paragraph is admitted.
Ad paragraph 91
As explained earlier, the delay between June and November 2005 in charging Thomson Holdings and Thomson (Pty) was merely procedural – the NDPP had to be briefed on the previous agreement with Thomson (Pty) and to consider its implications for his decision to prosecute.
Any ‘personal targeting’ of Zuma is denied.
Ad paragraph 92
Zuma’s acceptance is noted.
The court’s findings on points of law are binding on another court.
It is obvious that the State may and will have regard to credibility findings of a High Court. Such findings were reached after a lengthy trial and extensive argument. It hardly needs to be mentioned that the accused in that matter was free to call any rebutting evidence that he might have seen fit to call. In general, however, the quality of his and the defence witnesses’ evidence was alternatively unconvincing or supportive of the State’s case. This fact is itself significant, as was the fact that nothing was heard from Zuma even though he was uniquely placed to give evidence exonerating Shaik and it now appears that he considers the State to have presented incorrect evidence. This is more surprising, given the fact that Zuma instructed counsel to hold a watching brief throughout the trial.
Ad paragraph 93
The contents of this paragraph are noted.
I reiterate that matters of law to be decided by the SCA will indeed be significant for the purposes of the present matter.
Ad paragraph 94
I have dealt in detail with the effect of the Shaik trial upon the present matter.
I reiterate that 20 June 2005 is the correct date on which the decision to prosecute Zuma was made and published. This is confirmed in the affidavit of Pikoli.
I deny that there was a ‘deliberate stratagem’ directed against Zuma, either by Ngcuka or Pikoli or both. The considerations relating to the decisions not to prosecute and then to prosecute are detailed elsewhere.
Ad paragraph 95
The decision to prosecute or not to prosecute was taken irrespective of Zuma’s high political office. The NPA is obliged to exercise its functions without fear, favour or prejudice.
Ad paragraph 96
The extension to the investigation was indeed duly effected. It is denied that it was not done. A copy of the authorization is an annexure to this affidavit (see paragraph 93 above).
Ad paragraphs 97 and 98
It is denied that the extension was a ruse. The fact that the provisional indictment does not contain a charge reflecting the extension of the investigation is obvious – the State has not been able to complete the further investigation as a result of the challenges to the searches. As stated above, the provisional indictment does not reflect the further investigation.
Apart from this, and as stated above, it is not necessarily so that all aspects that are investigated will lead to charges that reflect that investigation. Initial leads that appear reasonably promising may come to nothing, and the expected evidence may later turn out to be unavailable.
